Drawing Blood Without a Warrant

E

Eleven

Forum Devotee
Joined
Dec 14, 2012
Reaction score
20
The Supreme Court heard arguments today in a case in which police in Missouri forced a man to have blood drawn without a warrant being issued. The police suspected the man of driving under the influence and when asked, the man refused to take a breathalyzer test. The Court could rule narrowly here or they could issue a sweeping decision either allowing or banning the drawing of blood in some or many circumstances without a warrant. The federal government and state and local governments have joined together in arguing for the warrantless searches while the American Civil Liberties Union is opposing.

I'm siding with the ACLU.
 
I'm a nurse in the US, and if I draw blood without the patient's permission, I can be charged with assault. If I were his nurse, and he refused, no way would I draw it no matter what the cop said. Let him draw it if he wants it so bad. It is unethical. Go ACLU.
 
  • Like
Reactions: Dedalus
So if he refuses a breathalyzer and refuses a blood draw, does some lawyer get him off because there was no proof he was drunk? How about refuse to be tested = 5 years in prison.
 
Wolfie said:
So if he refuses a breathalyzer and refuses a blood draw, does some lawyer get him off because there was no proof he was drunk? How about refuse to be tested = 5 years in prison.
Click to expand...
In Florida, if you refuse the breathalyzer on a first offense, you forfeit your drivers license for a year and are charged with a DUI. But if you agree to the breathalyzer and are *not* over the legal limit, they can draw blood to see if you've been smoking weed or anything.
 
Wolfie said:
Sounds good though I'd like to see it for more than 1 year. I have no sympathy for drunk drivers.
Click to expand...
The judge can make it longer if he wants, and if there have been other DUIs, it is stricter. Realistically, though, unless they look really impaired on the police video, they will likely plead down to reckless driving if they don't have breathalizer evidence. They still don't drive for a year, though.
 
Wolfie said:
So if he refuses a breathalyzer and refuses a blood draw, does some lawyer get him off because there was no proof he was drunk? How about refuse to be tested = 5 years in prison.
Click to expand...

He did refuse the blood draw. That's the point of this case. Can the blood draw be forced without a warrant being issued and stay within the bounds of the 4th Amendment?

There are similar laws in many states. I know that in Texas, if there is an accident involved, a blood draw can be forced.
 
Eleven said:
He did refuse the blood draw. That's the point of this case. Can the blood draw be forced without a warrant being issued and stay within the bounds of the 4th Amendment?

There are similar laws in many states. I know that in Texas, if there is an accident involved, a blood draw can be forced.
Click to expand...
Do they need a warrant?
 
Not currently. There was a SCOTUS decision that created the exigency doctrine that allows warrantless searches when delaying the search would be unreasonable. That's the basis used for the Texas statute allowing blood draws without a warrant.
 
The court seems to be leaning toward finding warrantless blood draws unconstitutional.

"...But justices indicated that they firmly believed that taking someone's blood was an intrusion that in most cases constituted a government "seizure" subject to protection of the Fourth Amendment and requiring the subject's permission or prior approval from a judge."How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone's body?" Justice Sonia Sotomayor asked John Koester, a prosecutor in Jackson, Mo., who represented the state Wednesday.

Sotomayor said that if the court ruled Missouri's way, it would be giving law enforcement free rein to "use the most intrusive way you can to prove your case," which wouldn't always be the most constitutionally sound way.The officer who arrested Tyler McNeely acknowledged that he didn't seek a warrant when he told a hospital lab technician to draw McNeely's blood after a DUI stop in 2010 because he believed he didn't need to, not because he didn't think he couldn't get one in time. "
http://usnews.nbcnews.com/_news/201...lood-tests-protected-by-fourth-amendment?lite
 
ledboots said:
The court seems to be leaning toward finding warrantless blood draws unconstitutional.
Click to expand...

I think it'll go that way too. The current Court often issues surprise rulings. It was ultra conservative Justice Anthony Scalia who wrote the majority opinion in Kyllo v. U.S., another important and recent 4th Amendment case dealing with warrantless searches.

And don't forget the recent health care decision written by Chief Justice Roberts.
 
Eleven said:
I think it'll go that way too. The current Court often issues surprise rulings. It was ultra conservative Justice Anthony Scalia who wrote the majority opinion in Kyllo v. U.S., another important and recent 4th Amendment case dealing with warrantless searches.

And don't forget the recent health care decision written by Chief Justice Roberts.
Click to expand...
No way to predict anything lately, which maybe means politics is being kept out of the Court? Ormaybe just the opposite, who knows.
 
In California, driving is considered implied consent to a breath or blood test.

Implied Consent For Chemical Testing

23612. (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.
(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood ( )1 for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.
(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153....
Click to expand...
You can read the rest at this link, it's pretty long.
http://www.dmv.ca.gov/pubs/vctop/d11_5/vc23612.htm

Hmmm....why won't it display the link? It just links to the dmv.
 
But the California law at that link continues...

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or ( )2 23153 of this code, or of Section 191.5 or ..."

That sounds similar to Florida's refusal law, except the "mandatory imprisonment if convicted" part. I don't think they would have drawn blood without permission if it had been in California.
 
Wolfie said:
So if he refuses a breathalyzer and refuses a blood draw, does some lawyer get him off because there was no proof he was drunk? How about refuse to be tested = 5 years in prison.
Click to expand...

Fifth amendment woes?
 
Top Bottom
Back